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A legislative solution to New Hampshire’s “push poll” law, which has led several top pollsters to halt survey research in the state, isn’t coming anytime soon.  

State Rep. David Bates (R), who chairs New Hampshire’s House Election Law Committee, tells C&E that he’s open to fixing the law, but says its flaws came to light too late this past legislative session to act.

Bates now says he’s pushing for more information from both the state attorney general’s office and the polling industry before the state legislature returns to action in January. He wants to reexamine the statute and potentially work up a draft of a bill before the legislature’s September deadline for legislative service requests.

The problem, says Bates, is that the information he wants hasn’t been forthcoming.         

“I really need to see some specifics of these allegations the AG has been sending to people,” Bates says. “It’s just very frustrating that no company was willing to provide that.”

Bates wants the office of Attorney General Michael Delany to offer more complete documentation on previous enforcement actions, as well as information on pending cases. The lawmaker has asked a host of polling firms for similar information.

The law in question broadly defines a push poll as any call about a candidate’s “character, status, or political stance or record.” Moreover, “calling voters on behalf of, in support of, or in opposition to, any candidate for public office by telephone” is considered a push poll. Giving a voter the impression the call came from an organization “acting independent of any particular political party, candidate, or interest group,” is a push poll under the law, too.   

The problem, argue pollsters, is that the law essentially outlaws message testing, preventing firms from deploying legitimate survey research on behalf of their clients.  

Whit Ayres, chairman of the American Association of Political Consultants, says the trade organization is still examining next steps when it comes to combatting the law, but he did tell C&E that he’s already broached the subject of the state’s “first-in-the-nation" primary status with both the Republican National Committee and the Democratic National Committee.

Ayres also acknowledges that a number of state lawmakers in New Hampshire don’t even recognize the problems inherent in the current law.   

“A number of people have decided that this isn’t a problem,” says Ayres.  “But it is a problem when they’re interpreting legitimate political research as negative advocacy calls, which is what push polls really are, and then fining those legitimate research firms, both Democrat and Republican, substantial sums of money—sums large enough to run them out of business.”  

Case in point: state Rep. David Pierce, the ranking Democrat on the House Election Law Committee. Pierce says he doesn’t see any real issue with the law as written and that the prospect of amending the statute hasn’t gone beyond “a lunch table conversation” with other state lawmakers.  

Currently, says Ayres, there’s nowhere near the level of survey research happening in the state that a typical presidential year might dictate. Several pollsters are holding back because they’re either worried about potential enforcement action, or are currently fighting the state attorney general’s office.    

“We have not [polled in New Hampshire], but that doesn’t mean I won’t,” says Democratic pollster Jef Pollock, noting that he works for former Rep. Carol Shea Porter, who’s attempting to regain her seat in Congress this November after being ousted in 2010.  

“I can tell you that we have most assuredly been staying away when we can,” Pollock says of his firm’s current approach to the state.  

Short of a legislative solution, the best pollsters can hope for in the short term is a positive outcome from the case pending against Rep. Charlie Bass’s (R-N.H.) campaign committee. The suit was filed in April by AG Delaney's office and it accuses the Bass camp of making a “deliberate attempt to avoid” the state’s disclosure requirements while conducting a poll during his 2010 race against Democrat Ann Kuster.

Last week, a federal judge ruled that the case should be decided in state court. Attorneys for Bass wanted to have the case heard in federal court, arguing the state law is preempted by the Federal Election Campaign Act.

Earlier this spring, the Federal Election Commission said in an advisory opinion that federal candidates and their campaign committees aren't subject to the state's survey disclaimer requirements. That was in response to a request from Democratic polling firm Greenberg Quinlan Rosner Research, which argued the law is preempted—the same argument Bass will use in court.   

But even if the FEC’s opinion wins the day, Ayres notes that state level campaigns will still be subject to enforcement action from the state attorney general’s office.

A spokesman for the AG’s office says prior to a decision in the Bass case, he doesn’t anticipate any change in enforcement of the law, noting “We’re just enforcing the law as written.”